Dr P Passmore v University of Exeter: 1405151/2018
EMPLOYMENT TRIBUNALS
Case No 1405151/2018
Between
Dr P PassmoreClaimantUniversity of ExeterRespondent
Before
Employment Judge O’RourkeIn person for claimantMr Jones (instructed by Counsel) for respondentDate 26 February 2020
JUDGMENT
The Claimant’s s.27 Equality Act 2010 claim of victimisation is dismissed, upon withdrawal. JUDGMENT[1]The Claimant is disabled, subject to s.6 of the Equality Act 2010.[2]The Tribunal has jurisdiction to hear the Claimant’s claim of disability discrimination, subject to s.123(1) of the Act.[3]The Claim will proceed to hearing, as set out in a Case Management Summary of same date. AMENDED REASONS[1]This Hearing was listed following a telephone case management preliminary hearing, on 19 January 2019, to determine the following issues:a. whether or not the Claimant was disabled, subject to the terms of s.6 of the Act.b. whether the claim had been brought within time and if not, whether the Tribunal had jurisdiction to consider the claim nonetheless, applying s.123(1) of the Act.[2]I heard evidence from the Claimant, who had also provided witness statements in respect of each issue. A joint bundle of documents had been agreed. The Law[3]I referred myself and the parties to the following:a. s.123(1) of the Act.b. Robertson v Bexley Community Centre [2003] IRLR 434 EWCA, as to the exercise of discretion to allow an extension of time under the ‘just and equitable’ test.c. British Coal Corporation v Keeble [1997] IRLR 336 UKEAT, as to the factors to be considered in applying that test.[4]Mr Jones referred me to the following authorities:a. Morris v Royal Bank of Scotland plc [2012] All ER(D) 53 UKEAT, as to the nature of medical evidence required to make a finding of disability.b. Apelogun-Gabriels v Lambeth London Borough Council [2001] Civ 1853 EWCA, as to the weight to be given to the deferring of a tribunal claim while awaiting the outcome of internal proceedings.c. Section B of the Guidance on the definition of Disability. Consideration[5]Disability. I found that the Claimant is disabled, due to his condition of dyslexia, for the following reasons:a. There was no dispute that he had been diagnosed by an educational psychologist, when aged 18 (he is now aged 30), as severely dyslexic [44]. While it was true, as Mr Jones submitted, reliant on Morris, that there was no further, more recent medical evidence, I note that that case was focused on likely duration and risk of recurrence, which is not the situation here, where I consider, bearing in mind the nature of the condition that that overall general diagnosis would be extremely unlikely to change. The condition therefore clearly constitutes a mental impairment.b. There was also no dispute that such an impairment, by its very nature, will be long-term/life-long.c. The core area of dispute was whether or not the impairment had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities. I considered that it did, for the following reasons: i. While the Claimant had not, in his impact statement, really addressed the ‘day to day’ nature of his activities, focusing instead on his work-related activities, I accepted that many unrepresented claimants will misunderstand this requirement, as their claim relates to their employment. His oral evidence, however, was compelling and persuasive as to the adverse effect his dyslexia had upon his day-to-day life. He is forgetful about appointments, for both work and social events, often missing, or being late for meetings, requiring multiple reminders. He forgets people’s names, leading to embarrassing situations, both at work and socially. He cannot absorb or follow verbal location directions, losing his way. When cooking, he will fail to follow recipes, excluding ingredients. He misreads written instructions/procedures quite frequently, resulting in errors and delays on his part. At school, he was given 25% extra time in exams, but it wasn’t until university that he was offered more comprehensive support. It was undisputed evidence that he also suffers from hyper-mobile joints and lax ligaments, which render him clumsy and prone to falls, a perhaps exacerbating factor in timekeeping. His evidence is borne out in the psychologist’s report, where it identifies that the difficulties the Claimant faces include in the areas of ‘organisational skills and time management’ and ‘working memory’ and it also makes reference to his physical problems. These adverse effects are exacerbated by stress, which is, he stated, inevitable, when appointments are missed, or he is late for them, or he is failing to achieve targets. ii. While he accepted that he had implemented ‘coping strategies’ to attempt to counter these effects, such as multiple digital diary reminders, the use of Google maps and leaving for meetings at least half an hour earlier than he needs to, he stated that these are ineffective when he is placed under stress, which is a common position for him to be in. During the period of his grievance against the Respondent, he attended ‘stressbuster’ counselling sessions with an appropriate counselling service [117]. Reference was made, in this respect, to paragraph B.10 of the Guidance which states that ‘in some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.’ On that basis, therefore, I did not accept Mr Jones’ submission, reliant on paragraph B.7, that such coping strategies as the Claimant may employ alter the effects sufficiently to render them no longer ‘substantial’. iii. ‘Substantial’ is defined by s.212(1) of the Act as ‘more than minor or trivial’. I consider the above effects to meet that definition. I note also that the Claimant was assessed by the psychologist as having well-above average IQ and having obtained a doctorate in late 2017, in political science, he is clearly a man of intelligence and drive. In that context, I consider that the above-stated effects are magnified, in his case, as he may well perceive them as ‘holding him back’, or otherwise restricting what should otherwise be a successful career. It is correct that the psychologist assessed his working memory as ‘average’, at a 61 percentile, but that is in marked contrast to his much higher scores in other areas, again pointing up the debilitating effect such an impairment would have on a man of the Claimant’s intelligence.[6]Limitation/Jurisdiction. There was no dispute that the claim was brought out of time. The Claimant asserted that the accepted last alleged act where he the Claimant suffered substantial disadvantage was in attempting to meet a marking and feedback target, in the period 4 to 8 June 2018. However, this is not accepted by the Respondent, who asserts that (if it occurred), it can have been no later than 10 April 2018. Early Conciliation with ACAS commenced on 14 October and he presented his claim to the Tribunal on 11 December. The reasons he gave for this delay were as follows:a. He was unaware of time limits for tribunal claims.b. As he had invested much time and effort in his planned academic career, having gained a PhD in 2017, while working on part-time basis for the University and with the hope of a permanent post, either in Exeter or elsewhere, he wished, if at all possible, to resolve his dispute with the Respondent through their internal procedures. He felt that if he failed to do so and was left with only the option of a tribunal claim that that would, reputationally, result in him becoming unemployable in his chosen career. He therefore consciously decided to wait until the outcome of his grievance, which he had first brought on 22 May 2018 [77], but was obliged to reiterate ‘formally’, by attaching an email to that effect to his original grievance, on 31 July [92]. That outcome was received on 8 October [103] and he appealed against that decision, receiving the decision on 30 November [114]. It was only then, he said that he felt he had no option but to consider this claim. He considered that the time taken by the Respondent to deal with these processes (approximately six months) had been specifically designed to ‘run down the clock’ on a potential claim.c. He was under considerable stress over this period, as evidenced by his attendance at appropriate counselling (as referred to above).[7]The Claimant’s reasons were challenged, as follows:a. He cannot have been under the degree of stress he claimed, as during the same period he had started new employment and also set up his business. While there was some evidence of counselling, he had not gone to his GP or being prescribed medication. He said that the setting up of his business took minimal effort (‘the filling in of a few forms’) and that he had no choice but to find other employment. He didn’t approach his GP, as his doctor didn’t support the use of medication in such cases and he himself didn’t consider that it would be helpful. He said he felt close to a breakdown, due to the potential loss of his hoped-for academic career.b. That his rationale for holding off bringing a tribunal claim was flawed, as, once he had brought a grievance, relations will have already broken down with the Respondent. He disagreed, stating that he felt that the Respondent had not been listening to his concerns, but that he genuinely hoped that by bringing the grievance, he could resolve the matter amicably and continue in his chosen career. He said that his text of 4 July, in which he said that he ‘no longer worked for the university’ was an ‘emotive response to the situation I found myself in’ [88a] and that he still, nonetheless, hoped that the dispute could be resolved.[8]Conclusion on Limitation. I find that while the claim is out of time, it would, applying s.123(1), be just and equitable to extend time, for the following reasons:a. The discretion granted to a tribunal to do so is a wide one.b. I consider, in the particular circumstances of the Claimant’s planned career that it was entirely legitimate of him to attempt to exhaust the Respondent’s internal procedure, before embarking on a tribunal claim. I accept that rightly or wrongly, he perceived that by bringing such a claim, his reputation would be adversely affected within the academic community, thus greatly limiting his future career opportunities. I don’t consider that the judgment in Apelogun-Gabriels prevents me from coming to that conclusion. While that judgment indicated that such delay would not, of itself, justify, extending time (as perhaps suggested by previous authorities), it was, nonetheless, a factor to be taken into account in the overall assessment. I note also that the appellant in that case had held the role of an accounting assistant, which I find a distinguishing feature from the circumstances of the Claimant and his fears as to his ‘card being marked’ in the wider academic community.c. Once he knew for certain that his concerns were not going to be addressed, at least to his satisfaction, he very promptly brought this claim.d. The balance of prejudice falls firmly, in my view, against the Claimant, as he would be debarred from seeking recourse for his complaint of disability discrimination, whereas the Respondent will have the resources necessary to meet such a claim, without undue prejudice to it.[9]Conclusion. For these reasons, therefore, the claim will proceed to hearing, as set out in the Case Management Summary of same date. ………………………………….. RECONSIDERATION JUDGMENT
REASONS
[1]Following a Preliminary Hearing Judgment of 30 August 2019, the Respondent applied, on 20 September 2019, for reconsideration of part of that Judgment, namely that the Tribunal had jurisdiction to hear the claim of disability discrimination (failure to make reasonable adjustments), despite it not being brought within time. The Respondent also requested the recording of the fact of a disputed date, as to the last detriment relied upon.[2]The Claimant was invited to respond and did so, eventually, on 31 October 2019.[3]After some prompting for a response, both parties agreed that the application could be considered by way of these written submissions and without the requirement for a hearing.
The Law
[4]Rule 72 of the Rules of Procedure sets out the procedure for reconsideration, in particular that in sub-paragraph (1), an application may be dismissed if the Tribunal considers that there is no reasonable prospect of the Judgment being varied or revoked.[5]The case of Fforde v Black UKEAT 68/80 indicates that the interests of justice ground only applies when something has gone radically wrong with the procedure, involving a denial of natural justice, or something of that order.[6]The case of Redding v EMI Leisure Ltd UKEAT 262/81 sets out that ‘the interests of justice’ relate to the interests of justice to both sides. The reconsideration process is not there to permit parties a ‘second bite of the cherry’.[7]The ‘Overriding Objective’ (Rule 2 of the Rules of Procedure) sets out that cases be dealt with in ways which are proportionate to the complexity and importance of the issues and avoiding delay and expense. The Limitation Point[8]The Respondent contends that the Tribunal’s distinguishing of the case of Apelogun-Gabriels v Lambeth London Borough Council [2002] EWCA ICR 713, from the facts of this claim, leading it to decide, therefore that that authority did not need to be followed, was in error.[9]The Tribunal’s conclusions on that issue were as follows: 8 ‘Conclusion on Limitation. I find that while the claim is out of time, it would, applying s.123(1), be just and equitable to extend time, for the following reasons:a. The discretion granted to a tribunal to do so is a wide one.b. I consider, in the particular circumstances of the Claimant’s planned career that it was entirely legitimate of him to attempt to exhaust the Respondent’s internal procedure, before embarking on a tribunal claim. I accept that rightly or wrongly, he perceived that by bringing such a claim, his reputation would be adversely affected within the academic community, thus greatly limiting his future career opportunities. I don’t consider that the judgment in Apelogun-Gabriels prevents me from coming to that conclusion. While that judgment indicated that such delay would not, of itself, justify, extending time (as perhaps suggested by previous authorities), it was, nonetheless, a factor to be taken into account in the overall assessment. I note also that the appellant in that case had held the role of an accounting assistant, which I find a distinguishing feature from the circumstances of the Claimant and his fears as to his ‘card being marked’ in the wider academic community.c. Once he knew for certain that his concerns were not going to be addressed, at least to his satisfaction, he very promptly brought this claim.d. The balance of prejudice falls firmly, in my view, against the Claimant, as he would be debarred from seeking recourse for his complaint of disability discrimination, whereas the Respondent will have the resources necessary to meet such a claim, without undue prejudice to it.’[10]The Respondent raised the following points, in particular:a. Distinguishing Mr Abelogun-Gabriels’ case from that of the Claimant, because the former was an accounting assistant and the latter a teaching assistant was unjustified, as claimants in many industries may experience concern that bringing litigation may adversely affect their career prospects. There was nothing unique, it was submitted, about the Claimant’s circumstances that justified the distinction made. On this point, the Claimant submitted that describing his role as a teaching assistant ignores the work he had done as a pre and post-doctoral research assistant, the ‘destruction of my connections within my academic network vital for an early career researcher and the longterm damage to my career by taking formal action. As a result, I had to completely switch careers and currently work in an IT support role with the NHS. I have been cut off from connections that would enable me to continue working towards establishing a career in academia.’b. In considering that the balance of prejudice fell ‘firmly’ in the Claimant’s favour, the Tribunal placed too much reliance on the Respondent’s ability, as a large organisation, to bear the cost of meeting the claim. The Tribunal also failed to take into account that the claim is a weak one (relying on comments made by the Tribunal) and that effectively the Respondent will be put to the likely irrecoverable cost of defending a claim that was bound to fail. The Claimant disputed that his claim was weak.c. There is a dispute of fact as to when the ‘last alleged act of detriment’ took place. The Claimant stated that it was in the period 4 to 8 June 2018 (as recorded in the Judgment), but the Respondent states that (if it occurred), it can have been no later than 10 April 2018. As this matter is something on which the Tribunal did not hear evidence, the issue remains one in dispute, to be determined in due course and therefore the Judgment will be amended, shortly, to indicate that dispute.
Findings
[11]Apelogun-Gabriels is not authority that the delaying of Tribunal proceedings, while awaiting the outcome of grievance procedures, can never be a factor in deciding that limitation should be extended. Instead, it set out that this factor would not, of itself, justify extension, but could be taken account of in the overall assessment, which, in its Judgment, the Tribunal did.[12]The decision to distinguish the Claimant’s situation from that of Mr ApelogunGabriels is maintained. The latter was an accounting assistant in a large London council, with likely many other such opportunities available to him in other similarly large London councils, or the finance departments of a host of businesses or in accountancy practices. The Claimant was not just a ‘teaching assistant’, but somebody hoping to embark on a career in Academia, where, I take judicial notice, academics working in similar fields will often know each other, having worked together in the past, attending conferences together and peer-reviewing each other’s work. Thus, having one’s ‘card marked’ as a potential ‘trouble-maker’ in such an environment will inevitably have potentially more far-reaching consequences for the Claimant’s career than that of Mr Apelogun-Gabriels, indicating that therefore, it was reasonable for the Claimant to have awaited the outcome of the grievance procedure, before embarking on these Tribunal proceedings.[13]I had no reason to doubt that the Claimant (unlike Mr Apelogun-Gabriels) was unaware of Tribunal limitation periods.[14]It is, perhaps, an over-statement, in the judgment, to state that the balance of prejudice falls ‘firmly’ in favour of the Claimant, but I do, nonetheless, find that it falls in his favour. He would be debarred from bringing any claim against the Respondent and while references were made by the Tribunal to the evidential difficulties he may face in proving his claim, such difficulties are routinely the case, particularly in discrimination cases. The Tribunal heard no evidence on the detriment issue or saw any documentation in relation to it and therefore was in no position to consider, in the balancing exercise, the claim to be without any merit.
Conclusion
[15]For these reasons, therefore, the Tribunal refuses the Respondent’s application for reconsideration of its Judgment.